'Under God' in court: Pledge of Allegiance draws new lawsuits

WASHINGTON — Since the 1940s, the Pledge of Allegiance has been the subject of legal challenges, especially since a 60-year-old Congressional joint resolution added two words that has turned the pledge into a declaration of faith as well as patriotism.

The 1954 change, enthusiastically supported by then-President Dwight D. Eisenhower, added the words "under God" before the closing phrase "with liberty and justice for all." Those words have become the target of many, and so far unsuccessful, legal challenges. This week, a humanist family in New Jersey's Monmouth County went to court challenging the use of those two words, according to the New York Daily News.

"Public schools should not engage in an exercise that tells students that patriotism is tied to a belief in God," declared David Niose, attorney for the American Humanist Association’s Appignani Humanist Legal Center, in a statement released by the group. "Such a daily exercise portrays atheist and humanist children as second-class citizens, and certainly contributes to anti-atheist prejudices."

The anonymous plaintiffs in the lawsuit claim the change came at the height of the McCarthy era, a time when then-Sen. Josephy McCarthy, a Wisconsin Republican, made sweeping allegations of communist penetration of the federal government. However, the Knights of Columbus, a Catholic fraternal organization, had begun using "under God" in its recitation of the pledge in 1951, and had sent a resolution supporting this to Eisenhower in 1953. Signing the change into law on Flag Day, 1954, Eisenhower said that with the change, "we are reaffirming the transcendence of religious faith in America's heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country's most powerful resource, in peace or in war."

According to the New York Daily News, the humanist group "is hoping that the courts will find that the current form of the Pledge of Allegiance violates New Jersey's constitution because it discriminates against people of no faith. After that first step, the organization suggests that the school can revert to the original Pledge or find another way for students to show patriotism."

The New Jersey case joins one in Massachusetts, where the state Supreme Court last fall heard arguments about whether "under God" violates equal protection guarantees of the state's Equal Rights Amendment.

"It’s a different approach," Niose, who also represents the Massachusetts plaintiffs, told The Christian Science Monitor. "We have constitutional protections demanding equality. The state statute that requires daily recitation — sponsored by school, led by teacher — of the Pledge of Allegiance, obviously discriminates against atheist and humanist children. On a daily basis, you’re having patriotism defined and having children indoctrinated in a way that exalts one religious group and marginalizes atheists and humanists." Earlier court challenges have centered more on whether the use of "under God" in a state-mandated pledge qualifies as an "establishment" of religion by government, something prohibited under the First Amendment. Atheist Michael Newdow, a lawyer and an emergency medicine physician, has filed three lawsuits challenging the pledge on those grounds. The first two suits were rejected by the Supreme Court of the United States on procedural issues, according to the Becket Fund for Religious Liberty, while the high court merely declined Newdow's third attempt to gain a hearing.

Not all legal challenges to the Pledge have failed, however. The Barnette family of West Virginia, members of Jehovah's Witnesses, won the right not to salute the flag and say the Pledge in a landmark 1943 U.S. Supreme Court case that overturned a ruling three years earlier against another Jehovah's Witness family whose school-age children refused to salute the flag and say the Pledge.